Standing Committee B

[Mr. Bill O'Brien in the Chair]

Proceeds of Crime Bill

Clause 13 - Interest on unpaid sums

Question proposed [this day], That the clause, as amended, stand part of the Bill. 
 Question again proposed.

David Wilshire: I seem to recall that I was halfway through a sentence in which I was trying to establish a fact from the Minister of State, Scotland Office, who has perhaps returned to his native land—

Mark Field: Not soon enough.

David Wilshire: We will gloss over that. The Minister apologised for not being present this afternoon.
 I believed that I heard the Minister say that a fixed rate of interest would be paid, and I said that that was probably not what he meant. Comment was made from a sedentary position that that was not what was said and I have no doubt that when the Under-Secretary replies, the exact rate of interest to be paid will be clarified. I will not repeat my argument, and I made these comments only so that you would know where we left off, Mr. O'Brien. 
 A further point worries me about the payment of interest on unpaid sums. There are opportunities for delay. Before we discussed this clause, we debated whether matters should occur immediately, in a specified period, after six months, or after 12 months. The Minister said that the time could be even longer than that and, if that were the case, interest would be chargeable. There are occasions when my hon. Friends and I are accused of being soft on criminals. There are also occasions when Labour Members have amazed looks when we appear to be harder than them. That shows how reasonable, flexible, thinking and responsive my hon. Friends and I are, unlike Labour Members who have one record that is played repetitively. 
 At the risk of sounding harder than the Minister, I am puzzled why interest is not instantly payable. A debt is a debt, and if interest is chargeable on a debt, it should be chargeable from the moment that the debt arises. I appreciate that there is a question about what happens if there is a later collapse. However, it is possible to repay the interest with interest so that we see that justice is done. A specified period of six months, 12 months or 24 months before the interest kicks in means that large sums could be involved. We should consider closing the potential loophole of playing a delaying game to avoid paying interest until later. 
 Why have we not had an explanation about the interest, which can and should be paid straight away, and about what the rate of interest should be? We have considered how matters should progress if a court deems fit and whether there should be a right of appeal against the imposition, or even the rate, of interest. I am curious to hear the Minister's response.

Nick Hawkins: I agree with every word that my hon. Friend said. Conservative spokesmen associate themselves with his comments.

Bob Ainsworth: If the hon. Member for Spelthorne (Mr. Wilshire) reads the clause, he will see that the matter is clear. Interest is payable from the time when the order becomes payable. If the defendant has asked for time to pay and that is being considered, interest is not payable for that period. There is no doubt about that. The clause states:
 ``If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on the amount for the period for which it remains unpaid.'' 
I turn to who sets the level of interest and whether it is appealable. The level of interest is that which applies to other cases under the Judgments Act 1838. It can be varied by order from the Lord Chancellor's Department. It is currently 8 per cent. The level of interest that will apply will not be appealable because it is set in statute and applies to other issues.

David Wilshire: I understand what the Minister said and I accept that the clause refers to
``when it is required to be paid'', 
but we do not know when that is. We were told originally that the order is payable the moment that it is made. We were then told that, if a specified period of, say, 12 months was agreed, it would not be payable, and that it would even be possible to extend the period to 24 months. However, at that point, the Minister of State said that interest would be payable. It is far from clear when interest is payable. Why cannot it be stated clearly that from the moment the order is made, interest is payable, and if there is found to have been a mistake, the money is repaid and interest is paid on the repayment?

Bob Ainsworth: We have such a provision. It is clause 13, under which interest is payable from the time that the order is required to be made. New subsection (2A) states:
 ``For the purposes of this section no amount is required to be paid under a confiscation order if— 
 (a) an application has been made under section 12(4), 
 (b) the application has not been determined by the court, and 
 (c) the period of 12 months starting with the date on which the confiscation order was made has not ended.'' 
The clause dictates what happens when those issues have been dealt with and when the order is required to be paid. If it is not paid, interest is applicable. 
 The hon. Gentleman is becoming mixed up because of a comment that arose in our discussions this morning about clause 24. That clause allows us to revisit the available amount on the request of the defendant. My hon. Friend the Minister of State said that, if that revisiting takes place, any interest that has been paid can be taken into account. It would be hardly be just if it were not taken into account. That clause provides the ability for the available amount to be revisited. That procedure may result in a lowering of the amount required. Any interest that has been charged will be taken into account when the re-evaluation takes place.

David Wilshire: The Minister raises another example of a point that I made about clause 7. I had not realised that it would apply to clause 13, too. We appear to have yet another clause that says what will happen. We have now been told that we can ignore the provisions under clause 13 if, under clause 24, we think that it is a good idea. I made the point on clause 7 and the Minister said that he would reconsider the matter. Does it not occur to him that the same stricture should apply under clause 13? If it is to be capable of being overruled, ignored or varied, it ought to say ``subject to the terms in clause 24''. We would then know where we stood.

Bob Ainsworth: If the hon. Gentleman is determined to be confused, he will be.
 Clause 13 makes it clear that interest is payable on unpaid sums. Clause 24 allows for the available amount to be revisited. If the defendant feels that he can challenge the available amount that has been decided, he should be given the opportunity to do that. If, as a result of revisiting the available amount, it is discovered that it is far lower than that which was originally imposed, any interest that has been attached to the original available amount must be taken into account in the re-evaluation. I do not find that confusing, and I am unsure why the hon. Gentleman does.

Nick Hawkins: I can understand why my hon. Friend finds that confusing. As he has explained, he is not a lawyer.
 In a genuine attempt to help the Government, I make a suggestion. Having listened to the difficulties that my hon. Friend has described, the Minister and his advisers should ponder whether, when the Bill comes to be reconsidered—or redrafted perhaps—clauses 13 and 24 ought to be combined, so that the two matters that relate to interest are included in the same clause. After all, the Government are always saying that they want to make legislation easier to read by ensuring that its language is nearer to plain English.

Bob Ainsworth: We gave an earlier commitment that we would consider redrafting the Bill. In principle, I am happy to look at any redrafting that might make the clause, and the Bill, easier to understand, but I do not believe that that would be the case with regard to the matter under discussion.
 That will be established when we discuss clause 24. It addresses a different issue. It deals with situations in which a defendant has persuaded the court to revisit the available amount. In revisiting that, the court must bear in mind what is just. If the court decided that the available amount was half that which was originally decided, it would not be just for it to continue to insist on the payment of the interest on the original amount. 
 I will study the hon. Gentleman's suggestion, and we will attempt to make matters clearer, if it is decided that that is necessary. However, I believe that those two clauses address separate issues. 
 Question put and agreed to. 
 Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 - Effect of order on court's other powers

Nick Hawkins: I beg to move amendment No. 60, in page 7, line 35, leave out subsection (7).
 This is a probing amendment, and I do not want to hear any remarks from the Government Back Benches that it is intended to wreck the Bill. 
 We are puzzled—in much the same way as my hon. Friend the Member for Spelthorne was puzzled about clause 13. My hon. Friend the Member for Beaconsfield (Mr. Grieve) has apologised for his absence from the Committee, but he will return soon. He and I independently came to the same conclusion about subsection (7): it is, to be kind, inelegantly drafted—or, to be critical, it is extremely confusing. It is almost circular in how it operates. If the writers of ``Yes, Minister'' were writing today and wanted to give Sir Humphrey, in one of their famous scripts, a long paragraph to read out that left the Minister, the fictitious Jim Hacker, completely confused, they would choose something just like subsection (7). Hon. Members need only read it to themselves quietly, as I hope they, including Labour Members, are now doing, to realise that it is the sort of thing that baffles ordinary mortals. 
 I am sure that in a moment the Minister will come up with some good reasons why the Bill must include something along those lines. As I said in relation to a probing amendment, we are not trying to attack the intention in either subsection (7) or clause 14 as a whole. As the Government have made clear, the Bill hugely extends the Government's powers to stop the Mr. Bigs, in particular, as we have all called them—the serious drug dealers—from hanging on to their ill-gotten gains. Undoubtedly such a Bill should contain a clause that is designed to set out the effect on the court's other powers. We have no problem with the basic intention of clause 14, but we believe that there must be a simpler way, and one that would be easier to understand, to set out the point in subsection (7). 
 My hon. Friend the Member for Beaconsfield and I came separately to that conclusion. As the Minister and, by now, other Committee members know, we both spent many years in the courts dealing with both criminal law and complex civil matters and are therefore used to abstruse legal drafting. Long before I entered the House in 1992 and my hon. Friend the Member for Beaconsfield entered it in 1997, we often used to find that judges would ask, ``What on earth did Parliament mean when it introduced something as complicated as that?'' Members of the Bar and solicitors are familiar with being puzzled about that. 
 Following a much more recent decision that was not in force when I did the vast majority of my work in the courts, Pepper v. Hart, judges may now look at what Ministers say in debates in Committee in order to understand what Parliament intended. We must therefore be especially careful in our drafting and in what we say in Committee in order to ensure that points are refined. This is a Pepper v. Hart point.

Tom Harris: As the hon. Gentleman advised, I read the provision silently to myself. Not being legally trained, I, too, look forward to the Minister's comments. If the hon. Gentleman believes that the provision, whatever it says, is worthy of inclusion in the Bill, can he explain why his only amendment is to leave it out completely rather than frame a new form of words?

Nick Hawkins: The hon. Gentleman makes a valid point. I am especially glad to hear from him because he and I have just spent an extremely enjoyable lunch attacking the media in general and the BBC in particular. I thoroughly agreed with everything that he said, and I believe from what he said that he agreed with some of what I said over lunch.
 Had my hon. Friend and I had more time, and had we not been under pressure to table a lot of other amendments, some of which related to very substantive matters and involved a real party political battle, we would have liked to try to redraft subsection (7). The hon. Gentleman makes a serious point, and the answer to his question is that if we had civil servants helping us, or more time, we would certainly have had a go at redrafting the provision. However, we had so little time to table our amendments on the big issues, such as clauses 70, 75, 11 and 6 and the civil recovery procedures—there are five areas where the major thrust had to be—that we simply ran out of time. I would have loved to do a redraft.

Paul Stinchcombe: What does the hon. Gentleman believe that the subsection means? Does he, like me, believe that it means that making a confiscation order does not restrict other sentencing powers?

Nick Hawkins: The hon. Gentleman may have suggested a good redraft to the Minister. That probably is what it means. That was certainly a summary that I had in my mind when I read it, and I hope that when the Minister replies we shall find that the hon. Gentleman and I are right about that. As a barrister, like me, with some experience of such matters, he will probably agree—whether he is prepared to say so on record is another matter; he may not want to upset his Whip—that it is not the most wonderful piece of drafting ever. He may think that recorders—one of whom he will probably be before long—and judges will wonder why on earth it was phrased in such a confusing, circular way.
 I shall not bore the Committee by going on a great length. I have made the point, which is probing, and I hope that the Minister will tell us not only what the provision is about but that he is prepared to take it away and consider whether it could be redrafted.

David Wilshire: As a layman, I shall try to be helpful to the lawyers—and I promise that I will not submit an invoice or ask for a fee. Occasionally, the common sense of the ignorant layman can throw light on such matters. I have read the relevant passage, and it would be an injustice to associate Mr. Hacker, Sir Humphrey—or even the Clerk's Department—with such a drafting. I want to test whether I can assist the Committee, and whether I understand it correctly. Subsection (7) states:
 ``No enactment restricting the power of a court dealing with an offender''— 
in good, simple English, I think that means an Act that says that one cannot do something. It continues: 
``in a particular way from dealing with him also in any other way''— 
I take that to mean that one can do it in another way. Am I therefore to understand that if an Act says that one cannot do something, one can do anything else that one likes? If that is correct, the Bill, which already goes round and round in circles, is in utter confusion. Subsection (7) then says that the order should not 
``restrict the court from dealing with an offender in any way''. 
The Bill therefore says, ``But actually, you can do it in the first way if you like.''

Vera Baird: The hon. Gentleman's bill will not be paid.
 I agree with the sentiments that have been expressed. Would it not be relatively easy to establish the operating framework if the subsection started with the penultimate line? I am not suggesting that it would be the perfect drafting, but the wording might then be something like this: ``The making of a confiscation order shall not restrict the court from dealing with an offender in addition in any other way it believes appropriate in respect of the offence.''

David Wilshire: That is the first time I have heard a barrister offering free advice. It is probably sensible. I had no intention of sending in a bill for my advice, but I would still like to know from the Minister whether the Bill is saying, ``If an Act says you can't do that, you can't do it, but you can do anything else, and if that isn't adequate, you can do the first thing anyway, which we said you couldn't do.'' That is how I understand it.

Bob Ainsworth: Before I give the Committee the justification for subsection (7), I assure the hon. Member for Surrey Heath (Mr. Hawkins) and my hon. Friends that I have read it not only quietly but loudly, and I have tried putting the emphasis in different places. I have even read it to other people. At one point, in referring to the subsection, my ministerial brief says that ``it makes it clear''. [Laughter.] I thought that I should say that before giving the Committee the reasons why we want to keep the subsection in the Bill.
 The effect of the amendment would be to create doubt as to whether the presence of a confiscation order inhibits the court from the exercise of its sentencing powers. The provision has featured in criminal confiscation legislation from the outset. Clause 14 sets out what effect a confiscation order has on the court's other powers to impose a sentence on a defendant on conviction. For example, subsection (2) states that 
 ``The court must take account of the confiscation order before— 
 (a) it imposes a fine'', 
or any other type of specified order, on the defendant. Subsection (4) makes it clear that 
``the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.'' 
That is subject to subsection (2). 
 Subsection (7)—this is where my brief says it makes it clear—makes it clear that if the court has the power to combine two or more sentencing disposals, the presence of a confiscation order cannot prevent the court from doing so. Under subsection (7), a confiscation order does not restrict any of the other disposals that a court may have. The wording has formed part of the law relating to confiscation since the Drug Trafficking Offences Act 1986. We considered the subsection's function and whether it was removable. If the hon. Member for Surrey Heath has spare time over his Christmas break, or if my hon. Friends would like to spend their time thinking of a suitable way to rephrase the passage, they would do the whole criminal justice system a favour. 
 We are advised that the contents of subsection (7) are understood and have been used for some time. Its removal would create uncertainty. For those reasons, notwithstanding my suggestion that the hon. Gentleman should formulate a better phrase, I ask him to withdraw the amendment and allow subsection (7) to remain part of the Bill.

Nick Hawkins: The Minister obviously had his tongue firmly in his cheek at the outset of his remarks. I was grateful to learn that he had problems with subsection (7), just as we did. He described how he went through the passage several times, putting the stress in different places. One can picture the Minister staying up into the small hours with a wet towel around his head, trying to make sense of it. The subsection is not easy to understand, and the hon. Members for Redcar (Vera Baird) and for Wellingborough (Mr. Stinchcombe) have come up with other ways of phrasing it that might address the problem.
 The Minister has been very reasonable, and is reverting to the side of him with which we deal most often. I find that he is most reasonable when dealing with statutory instruments, rather than operating in strict accordance with Government briefs that criticise the Opposition. He is now in his normal mode as a reasonable and rational man. I am happy to accept his assurance that he is prepared to look at the matter again. Now that his officials have heard from the hon. Members for Redcar and for Wellingborough, they will do the same, and we may find that a Government amendment on the subject is introduced later.

Bob Ainsworth: I absolutely did not say that I wanted to look at subsection (7) again; I invited the hon. Gentleman, and my hon. Friends, to look at it again, if they so wished.

Nick Hawkins: The Minister reinforces his point wittily. I shall rephrase what I said: the Minister accepts that his officials should reconsider subsection (7) in the light of the helpful suggestions of his hon. Friends. We may find that a Government amendment is introduced that suggests something simpler and less like the work of Sir Humphrey. As the Minister has said that the passage must be reconsidered, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I shall not detain the Committee. When I moved amendment No. 60, I said that we accepted that such provisions are needed in the Bill, and it seems only sensible that the Bill should contain something like clause 14. When the Minister responds, I should like him to say whether he is satisfied that subsection (3), which mentions the Powers of Criminal Courts (Sentencing) Act 2000, the Misuse of Drugs Act 1971 and the Terrorism Act 2000, covers all the ground.
 I know that the Minister must read from a brief that says that everything is covered under subsection (3), but when considering such a large Bill, it is important to get something on the record about the cross-referencing between different pieces of legislation. Throughout the Committee, the Minister has said—quite rightly—that the Bill updates and extends existing law. I want to ensure that it is on the record that the Minister and his advisers are confident nothing has been missed. I do not know whether my hon. Friend the Member for Cities of London and Westminster, from his experience in the City, has been approached by any slightly worried organisations. Although I have pressed companies such as the British Bankers Association and individual banks to respond, I have not received details, although I have tabled amendments following contact with the Chartered Institute of Taxation. 
 I want this on the record because, as hon. Members will know, in Committee we sometimes find that we receive a brief that refers to the whole Bill, including matters that have already been debated when considering previous amendments and clauses.

David Tredinnick: Hear, hear.

Nick Hawkins: I know that my hon. Friend has extensive experience of such matters.

Mark Field: My hon. Friend makes a valid point. Many members of the Committee will have received briefs from a variety of professional and public bodies. Nothing would be more of a crying shame than either lacunae or too much overlap. Such briefs provide opportunities, and with your leave, Mr. O'Brien, I hope that we could return to issues should we receive representations.
 As my hon. Friend said, I have received briefings from organisations in the City which, although they—like the Conservative party—were positive about the overriding aspects of the Bill, nevertheless examined it clause by clause. Therefore, I endorse my hon. Friend's comments.

Nick Hawkins: The only chance that we will have to revisit the matter in this House will be on Report. That is why I want the Minister to comment on the whole clause, especially subsection (3). I am sure that he will have had briefing from his officials about its importance.

Bob Ainsworth: The clause is technical. It sets out the basic relationship between confiscation orders and other orders that may be made following conviction. It makes it clear that confiscation orders are not to be drawn into the global sentencing process. It also reproduces the effect of existing legislation. The hon. Member for Cities of London and Westminster asked a reasonable question, but we are not aware of any lacunae—to use his word. He will see that subsection (5) deliberately draws out compensation orders and proposes to deal with those differently.

Nick Hawkins: I am grateful to the Minister for that explanation. He simply says that the clause is technical, but will he give us further information about the way in which it will operate? I do not wish to delay the Committee, as I am sure the Minister appreciates, but it would be helpful if he could give us further details about the technical aspects of the clause, which I am sure he has been given.

Bob Ainsworth: As the hon. Gentleman knows, the clause is an attempt to set out the order in which we proceed, the point at which confiscation orders come in, and what must be taken account of before an order is made and what must not. I do not know what further information the hon. Gentleman wants. What are his worries, apart from the fact that we may not have covered everything? We believe that everything is covered, and we have reproduced provisions from existing legislation.

Nick Hawkins: I understand that the Minister has gone as far as he feels he can, and I am happy to leave it there.
 Question put and agreed to. 
 Clause 14 ordered to stand part of the Bill.

Clause 15 - Postponement

Mark Field: I beg to move amendment No. 103, in page 8, line 3, leave out subsection (3).

Bill O'Brien: With this we may discuss the following amendments: No. 27, in page 8, line 4, leave out `two years' and insert `six months'.
 No. 104, in page 8, line 4, leave out `two years' and insert `three months'.

Mark Field: I have spoken to the hon. Member for Lewes (Mr. Baker), and with your leave, Mr. O'Brien, he will speak to amendment No. 27 in a moment. I shall speak to amendment No. 103.
 I know that all members of the Committee are in confessional mode about our legal background, or otherwise, and I stand here with trepidation, as I am sure that I am about to incur the wrath of the hon. Member for Glasgow, Pollok (Mr. Davidson). 
 I admit that my legal career was somewhat less glorious than those of a few other hon. Members who are present—I am looking, with great admiration, at the hon. Member for Redcar, who may even be a Queen's Counsel, and who has, no doubt, spent many years practising at the Bar. I spent four years practising law—two years as a trainee solicitor, followed by two years working as a corporate lawyer with Freshfields, one of the big City of London practices, before I determined that the world would not be a much worse place if there were one lawyer less, and escaped to go and run my own business. [Hon. Members: ``Hear, hear.''] That is, I am sure, the highest compliment that I could possibly receive from Labour Members. 
 As for the clause, I know how difficult it is to draft from first principles. There are more barristers than solicitors present in the Committee, and they probably have a low regard for solicitors' drafting skills. In my experience, current legal education does not accord such skills a high enough priority. This is a large Bill, and I do not wish to be unkind to the Treasury's solicitors, who have no doubt gone to great trouble at short notice to draft it, but, to take up a point that my hon. Friend the Member for Spelthorne made, clause 15 is confusing. 
 With regard to subsection (3) and the amendment under discussion, what might be the ``exceptional circumstances''? I am unsure. Indeed, the entire issue of postponement is confusing, if one ponders each of the other subsections. It is evident that clause 6 and the whole issue of confiscation orders are referred to. Mention is made of the trigger point, which is the conviction, and a period of up to two years, which is the permitted period, and there is confusion about the postponement going beyond that, which does not seem entirely logical. However, subsection (3) says that there are exceptional circumstances that could rule that out. Will the Minister explain what those exceptional circumstances might be? I hope to reserve the right to discuss what might flow from that explanation.

Nick Hawkins: I am grateful to my hon. Friend. He has illustrated how useful it is for members of Committees such as this to have a variety of experience, regardless of the party that they might represent.
 As my hon. Friend has explained, his opinions on the matter are informed by two aspects of his experience. He worked in a leading City solicitor's firm. Labour Members are often happy to criticise lawyers, but—as a lawyer who sits on the Government Benches but is not a member of the Committee recently said to me—they tend to forget the huge contribution made to the United Kingdom's invisible earnings by firms such as Freshfields, Slaughter and May, and Linklaters. The best commercial legal firms in the world are in the City of London, and they make a vast contribution to the nation's wealth. When people are considering where they want their commercial disputes to be settled, and on whom they wish to rely, if they are representing a company in South America trading with a country in Africa, or a company in the former Soviet Union or the former Warsaw pact countries trading with a company in Canada, they do not tend to choose their own legal systems. They tend to want everything to be decided by English law, and to be resolved by firms in the City of London. That is the commercial reality.

Ian Davidson: Is this a commercial break?
Mr. Hawkins rose—

Bill O'Brien: Order. I was about to tell the hon. Member for Surrey Heath that he was straying from the subject.

Nick Hawkins: If that was the case, I apologise, Mr. O'Brien. I was responding to the comments of my hon. Friend the Member for Cities of London and Westminster about his own experience, which had led him to feel that insufficient concentration was put on training people to perform tasks such as drafting. Nevertheless, I hope that Labour Members, who tend to be anti-lawyer, will bear that in mind, given its contribution to UK plc.
 My hon. Friend the Member for Cities of London and Westminster was right to say that we must ensure that the drafting is precise. I look forward to the Minister's response to my hon. Friend's valid points and I hope that he will respond sensibly to the amendments. They are intended to be constructive. They would not weaken the Bill.

Norman Baker: I hope that the hon. Gentleman will forgive me if I say that his contribution was almost as obscure as the provision to which he was referring. However, I am sure that he has made a well argued point.
 I confess that amendment No. 27 is merely a way to get the Minister to justify the period of two years. It seems a long time, and could lead to a hiatus, which is not good for the prosecution authorities or for the defendant. Ideally, it would be better if the period were shorter.

Bob Ainsworth: The overall effect of the amendments would be to reduce the period for which confiscation proceedings may be postponed. The first and third amendments must be read together. Amendment No. 103 would prevent any postponement for longer than the specific maximum period even if there were exceptional circumstances. Amendment No. 104 would reduce the maximum postponement period to three months. Amendment No. 27 would reduce the normal maximum postponement period from two years to six months.
 The current legislation permits an extension of up to six months in normal circumstances and allows for an unlimited extension in exceptional circumstances. The definition of whether the circumstances are exceptional is to be decided by the courts. I remind members of the Committee who want to give courts the discretion to decide such issues that it will be for the courts to decide, on application, whether the circumstances are exceptional and whether an extension is justified. Any reason could be considered, such as there being property overseas and difficulty in obtaining information. If the prosecutor could not convince the court that he had just and valid reasons, and exceptional circumstances applied, the court would not allow the extension. We are giving courts the freedom to listen to an argument when exceptional circumstances apply and to allow an extended period when it accepts that that is so.

Norman Baker: The Liberal Democrats are not seeking to deprive the courts of such flexibility, for the reasons that the Minister has explained. However, given that the court has flexibility—and rightly so—why has the initial period been extended to two years?

Bob Ainsworth: The hon. Gentleman must allow me to respond to the amendment about exceptional circumstances and to his own amendment, which would curtail time. The current arrangements for the postponement of confiscation hearings were examined carefully in the performance and innovation unit's report. That was the origin of the Bill. It examined how the current legislation was working, and its shortcomings. The PIU report examined the length of time allowed under the current legislation, which is where the proposal came from for the change under the Bill.
 The defects of those arrangements are discussed in full in the PIU report, paragraph 8.22 of which concluded that the short six-month deadline meant that some 
``confiscation orders cannot be obtained . . . due to simple administrative delay. For example, lack of court time, unavailability of counsel, trial judge, or defendant, or the ongoing trial of a co-defendant''. 
Those have been identified as reasons why confiscation has been lost under the current legislation. 
 In line with the repeated assurances of hon. Gentlemen that they do not wish to prevent the confiscation of the proceeds of crime, I ask them to accept that that six-month period has effectively prevented us from confiscating the proceeds of crime. That is the basic reason why we are seeking a longer period.

Norman Baker: I am grateful for that explanation. On that basis, I do not wish to pursue my amendment. However, if the problem is that the courts are taking too long to deal with such matters, or that judges are not turning up, I hope that the Government will try to deal with that.

Bob Ainsworth: I would like to think that we could sharpen up the court process all around. We tried to do that, and we have had considerable success with regard to youth offending. It was part of our manifesto, and we have managed to cut the time considerably. These are matters of justice, and problems arise from time to time. If we impose an unreasonable time limit on postponement, people will in effect be allowed to avoid confiscation and maintain their ill-gotten gains. We would not want defendants to be able to frustrate the purposes of confiscation by stalling in the hope that the six-month period will expire. That point was highlighted in the PIU report. With that background in mind, we view amendments Nos. 103 and 104 with trepidation, because they would take us back to the position that currently applies, and, in one case, further shorten the period allowed. I therefore ask hon. Gentlemen not to press their amendments.

Mark Field: Clearly, in the light of what has been said, and on the basis that our proposed time limit is even shorter than that suggested by the hon. Member for Lewes, we will be happy not to press amendment No. 104 to a vote. However, this matter raises serious questions about the administration of justice in this country, given that a six-month limit is thought to be too short, and a two-year limit is thought necessary. I hope that the Committee's concerns about that will be passed back. All of us appreciate that, at times, confiscation matters are complex, and involve the tracing of significant assets overseas. Equally, however, the individuals involved will no doubt have been subject to long-standing investigation. Those matters are of great concern.
 We will withdraw the amendment about exceptional circumstances. We have been comforted in part by what we have heard from the Minister—but the problem relates back to the issue of slack and loose drafting. Anyone who has seen American legal documents, as I did when I worked in international law in the early 1990s, will know that one of the joys of working with large contracts is the belt and braces approach in every sub-clause. The sloppy drafting in clause 15 is not isolated, and we may find more elsewhere. A belt and braces approach is necessary, for some of the reasons that have been set out. Equally, it is confusing to see how it is put together—

Bob Ainsworth: I genuinely do not understand why the hon. Gentleman introduces the issue of drafting. It will be for the court to decide whether to allow a postponement. The court will, of course, not allow a postponement that is absolutely unnecessary and unjustified; it will decide whether a postponement is justified. The court will hear a case that suggests that there are exceptional circumstances that would apply beyond two years. In normal circumstances, it will not allow a postponement beyond two years. That is what the Bill says. It extends the current provisions—for good and proper reasons—and I do not understand how drafting comes into it.

Mark Field: The lack of logic at the heart of the process is that there is to be a permitted period that can be exceeded before the postponement period knocks in, notwithstanding the exceptional circumstances referred to in subsection (3).

Ian Davidson: Is the hon. Gentleman trying to find a loophole for bad people?

Mark Field: Something must have been put into the water today. Conservative Members have become much tougher, and the hon. Gentleman will be pleased that today's discussions show that we are not as soft on crime—or, more to the point, on criminals—as may have been implied during the past two or three sittings.

Nick Hawkins: My hon. Friend may have forgotten that the hon. Member for Glasgow, Pollok, for entirely understandable reasons, was unable to be with us for the early part of this morning—

Bill O'Brien: Order. The hon. Gentleman knows better than that.

Mark Field: On that note, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I want to raise one point and receive the Minister's guidance on a matter that arises from the explanatory notes. I have been critical of many of the Government's changes to Parliament, but explanatory notes have been helpful. I know that they have no statutory force but they can alert hon. Members to particular points, especially if the Bill is big and complex and provisions are new. Paragraph 37 of the notes, which relates to subsection (7), mentions
``a new provision which provides that if an application for extension is made before the end of the period of postponement, it does not matter if the court makes a decision on the application after the end of the period of postponement. This deals with the situation where an application is made in time but, because of listing difficulties, the court cannot hear and make a decision on the application before the existing period of postponement expires.'' 
All hon. Members who practised in the criminal courts understand listing difficulties, which do not often enter the ambit of those who are not lawyers. It is a professional problem for court clerks, judges, barristers and solicitors. However, that brings us back to a question that I asked the Minister of State, Scotland Office about the way in which the Bill may impact on the court service and cause additional difficulties. I raise the matter now because if the reason for subsection (7) is, as the explanatory notes say, because listing difficulties are anticipated on occasions—we all know that the criminal courts are busy—that reinforces the point that was pooh-poohed and dismissed by both Ministers, but especially the Scotland Office Minister, when we asked for details of how the Government and their advisers thought that the Bill would affect the courts' burden of work. I confess that I did not spot this in a previous debate, but now we have a new provision to take account of listing difficulties. 
 The point is not huge, but I thought that it was worth getting it on the record and hearing the Minister's comments. I do not suggest that the provisions should not take account of listing difficulties, but what we are doing is new, and clearly the Bill greatly extends the law. We think that it will make extra work, perhaps more than the Government want to suggest. 
 The more effective the Bill is at stopping Mr. Big keeping his ill-gotten gains, the more applications there will be under the provisions. How does the Minister think clause 15 will operate as a whole? Will he refer to subsection (7) in particular?

Bob Ainsworth: Subsection (7) is technical. It will ensure that listing and the other problems that the hon. Gentleman described do not become an issue. It was not thought necessary because of any burden that the Bill would place on court proceedings. I cannot remember the extent to which he accused us of pooh-poohing his previous comments, although I think that it was when he suggested that we were creating another Child Support Agency.
 I have told the Committee about our thoughts on the level of confiscation orders and civil recovery issues as well as the use of taxation powers. The hon. Gentleman may be right in that the legislation could be used more widely, but subsection (7) was not drafted because we thought that a crazy system would be imposed on the courts. It was included in the Bill only, as he recognised, because of the problem of listings. It was not felt that those problems should rule out a postponement. 
 We consulted the Lord Chancellor's Department about court time. It is obviously aware of the Bill and of our assessment of the extent to which its powers will be used. The hon. Gentleman thought that they would be used far more widely than we had suggested. I cannot prove that he is wrong; I can only say that I think he is wrong.

Nick Hawkins: The Minister is being helpful. I appreciate that he has rightly consulted the Lord Chancellor's Department. I did not say that such a system would impose crazy burdens on the courts. I do not disagree with him to that extent, and so far I am pleased with his response. However, in addition to consulting the Lord Chancellor's Department, which is sensible, has the Home Office consulted circuit judges? If the hon. Gentleman thinks that that would not be appropriate, will he check whether the Lord Chancellor has consulted the circuit judges who are at the sharp end?

Bob Ainsworth: We consulted widely on the provisions in the Bill, but I cannot say whether the Lord Chancellor's Department consulted widely on the potential impact of the Bill and its burden on the court system. I shall check and let him know.

Boris Johnson: At the risk of trying the Minister's patience, I should like him to clarify something.. I may have misunderstood clause 15 and its timing of postponements for permitted periods. Is there any point at which the action to recover the proceeds may not go ahead? As I understand it, such proceedings could continue after the permitted period and, in exceptional circumstances, sine die. When will it all end for the poor miscreant?

Bob Ainsworth: How could I possibly lose patience with the hon. Gentleman? As he said, in normal circumstances the process will end within two years, and that gives guidance to the courts about how quickly the director or prosecutor should be able to put the case together. It will continue beyond two years only if the court accepts that exceptional circumstances justify a postponement. I do not know whether it is right to say that a court would not under any circumstances say that the case should last for a certain time. Only if the prosecutor or the director can convince the court that there are exceptional circumstances that justify postponement for longer than two years will cases be postponed for that time.

Ian Davidson: I am tempted to join the discussion because of the hon. Gentleman's use of the phrase ``sine die''. In the west of Scotland, that is more commonly pronounced ``sign dye''—or ``sign dye, ya bass'' on occasions. It would be helpful if we had conversations in English—

Boris Johnson: Ad infinitum.

Ian Davidson: If the hon. Gentleman spells it for me, I will certainly add it.
 I missed some of the debate this morning because of medical reasons. As some hon. Members are aware, I am occasionally breathless because I have only one lung—the other side is all heart, Mr. O'Brien, and I was having some of it hardened against lawyers this morning.

Nick Hawkins: May I ask the same question that the hon. Gentleman asked me in an earlier intervention? Is this a commercial break?

Ian Davidson: The hon. Gentleman will find out what this is about in a moment.
 I had reason to see the nurse this afternoon, as I had several symptoms related to this Committee. I described them as lethargy, hopelessness and despair. She said to me, ``Are you in the Committee with the Member for Beaconsfield and the Member for Surrey Heath, because we've had a number of members of that Committee here with those symptoms.'' She said that it would be okay for me to return to the Committee this afternoon—but only on the understanding that the hon. Member for Beaconsfield would be absent. She thought that I would be able to survive the hon. Member for Surrey Heath, even if he was complemented by the hon. Member for Lewes, who was a little equivocal earlier in telling the hon. Member for Surrey Heath what he thought of him.

David Wilshire: I am sorry that I missed the beginning of the hon. Gentleman's speech, but I thought that I should warn him—in case he was in danger of having a relapse into whatever he had this morning—that my hon. Friend the Member for Beaconsfield will be back soon, so he might want to finish his speech and leave sooner rather than later.
Mr. Davidson rose—

Bill O'Brien: Order. Will the hon. Gentleman address his remarks to clause 15?

Ian Davidson: Ah, yes—[Interruption.]
 I was looking out of the window, as I have on several occasions, to check whether flying pigs were going by—I understand that the House authorities have had these windows specially strengthened to stop Members on the Government side of the Committee throwing themselves out—and at that point the hon. Member for Beaconsfield arrived.

Helen Clark: As the hon. Member for Beaconsfield has made such a spectacular entrance, will my hon. Friend brief him on the medical problems to which he referred?

Bill O'Brien: Order. No, the hon. Gentleman will not.

Ian Davidson: When thinking of the hon. Member for Beaconsfield, the word ``brief'' is not one that springs to mind.
 To return to the clause, will the Minister clarify the intention behind the wording? Do I take it that the intention is to give the courts the maximum flexibility so that those who deserve punishment receive it, and what should be confiscated is confiscated? The amendments that have been floated, especially by the hon. Member for Surrey Heath, would make it easier for malefactors to escape justice. 
 Question put and agreed to. 
 Clause 15 ordered to stand part of the Bill.

Clause 16 - Effect of postponement

Mark Field: I beg to move amendment No. 105, in page 8, line 29, after `(1)', insert
 `Notwithstanding the provisions of section 7'.
 This is a relatively small matter of general housekeeping. Hon. Members who can recall the debate at this time last week, which seems like an inordinate time ago, may remember that we debated clause 7 at length. My hon. Friend the Member for Spelthorne, who, interestingly, is one of the few non-lawyers in Committee, raised a matter that pricked the Minister's conscience. I can probably say that safely because my hon. Friend is here—but perhaps not so safely because, of course, he is the Whip. At the start of proceedings last Tuesday, he sent a round robin for members of the Committee to note their previous professions. The list showed that there are many solicitors, ex-solicitors, barristers and ex-barristers; I cannot remember exactly what the hon. Member for Glasgow, Pollok was listed as. However, in the analysis, my hon. Friend the Member for Spelthorne said, ``I've never done an honest day's work in my life'', other than, perhaps, looking after his late mother's affairs—maybe illicit affairs, who knows?—as was discussed this morning. We do not know what old Ma Wilshire was up to in those days that may have come within the remit of clauses 11 and 12 of the Bill. 
 This is about good housekeeping, and I hope that we can link clause 16 with clause 7, as we envisaged when we discussed the subject the other day. I proposed the wording with that in mind.

Bob Ainsworth: I thank the hon. Gentleman for reminding us of the allegations that the hon. Member for Spelthorne made about his mother. I do not know which is a worse offence—selling one's granny down the river or shopping one's mother. However, the hon. Member for Spelthorne may clarify what he said about that as the Committee proceeds. It may be interesting to hear the details.
 When we discussed clause 7, I recall that hon. Members were doubtful whether the Bill makes it sufficiently clear that it does not prevent the defendant from being sentenced first during a case in which a confiscation proceeding would be postponed. I know that a similar question arises from other clauses of the Bill. I draw hon. Members' attention to the reconsideration clauses 21 and 22, which permit a confiscation order to be made after sentence. As has been pointed out, clause 16(6)(b) says that 
``section 7 must be ignored'' 
if the court proceeds to sentence the defendant under subsection 16(1). The Government believe that that meets some hon. Members' concerns. However, as we have been reminded, the Government are willing to consider whether the Bill makes sufficiently clear the relationship between clause 7 and other relevant clauses, or whether further clarification is desirable. We stand by that commitment and we will tell the Committee our views in due course. We may decide, following further advice, that an amendment is not desirable. Therefore I ask the hon. Member for Cities of London and Westminster to withdraw the amendment for the present, although I confirm that we are willing to examine whether the drafting is adequate.

David Wilshire: I am pleased that my hon. Friend the Member for Cities of London and Westminster tabled the amendment, because we were invited to consider the point that I raised when we reached this clause. However, I will not rehearse those arguments; I intervene only because of the reference to my mother. You were not present this morning, Mr. O'Brien, when I cited the relevance to the Bill of my difficulty in sorting out her possessions following her death a few weeks ago. It is appropriate that my hon. Friend mentioned my mother when discussing clause 16, which is about the effect of postponement. If we had been able to postpone my mother's death, she could have come and told us what she was up to herself.

Mark Field: My memory about the wording of the occupation of the hon. Member for Glasgow, Pollok has returned—and I recall that my hon. Friend the Member for Spelthorne wrote that in Latin. I am happy to beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 16 ordered to stand part of the Bill.

Clause 17 - Statement of information

Dominic Grieve: I beg to move amendment No. 78, in page 9, line 21, after `court', insert `and the defendant'.

Bill O'Brien: With this we may discuss the following amendments: No. 79, in page 9, line 25, after `it', insert `and the defendant'.
 No. 80, in page 10, line 4, at end insert— 
`(c) he must give a copy of the further statement to the defendant, within any period that the court orders.'.
 No. 81, in page 10, line 38, after `it', insert `and the prosecutor or Director'.

Dominic Grieve: It is a pleasure to return to the Committee. I am sorry that I was not present to hear the hon. Member for Glasgow, Pollok explain the cause of his ill health, but it has been communicated to me by my hon. Friend the Member for Surrey Heath.
 However, I rejoice in the fact that consideration is to be given to an amendment in which I had an interest but could not move myself, which addressed gobbledegook in draft Bills.

Bob Ainsworth: An invitation was given to other people—including the hon. Gentleman—to devote their time to seeing whether they could make improvements.

Dominic Grieve: I assure the Minister that I will try to give that some attention. If I come up with a better draft, I will allow him—and his civil servants—to use it.
 All the amendments concern whether the information should be given to the court alone, or to the defendant as well. I anticipate that the Minister will tell me that if the court is requiring the information, and there is a duty on the director or prosecutor to supply it, that information will be communicated by the court to the defendant. The Minister is nodding his head in agreement, but my experience suggests to me that that does not always happen. It might happen eventually, but it does not always happen as quickly as it should. That is why I tabled the amendments. 
 That might be interpreted as a criticism of the court system, and I can recall several occasions, during the course of my professional practice, when documents that the court was supposed to send out to individuals did not get sent. Given the adversarial nature of the proceedings, and the fact that the prosecutor or director is seeking the confiscation of another person's assets, I cannot think of a good reason why there should not be a statutory obligation on the prosecutor or director to supply copies, not only to the court but to the defendant.

Nick Hawkins: As my hon. Friend was saying that, I looked outside at the weather and recalled an infamous occasion when the situation that he has described happened. I will never forget it. I had to travel, on a cold, wet Thursday in November, from my home in the south-west midlands to the furthest court in what was then the Midland and Oxford circuit, in Skegness. When I arrived, I discovered that the court had failed to notify the defendant that the proceedings were taking place. Everyone's time was wasted, and the most appalling thing of all is that when we returned to Skegness, on an equally wet, cold, depressing Thursday in February, the court issued an absolute discharge to my client. We also received an apology, and we were told that the magistrates in the town were always telling the police not to prosecute for the offence, but they never took any notice. I hope that that anecdote further illustrates my hon. Friend's point.

Dominic Grieve: It exemplifies the sort of problem that legal practitioners regularly encounter. I have been completely fair about that. The Minister will see that the last amendment in the group—No. 81, which relates to clause 19—would create a burden in the opposite direction, so that the defendant must supply information not only to the court but to ``the prosecutor or Director''. I appreciate that I am making a relatively small point, but as we are trying to get the legislation into good order, the amendment might profitably be included. It has no downside and would cause no problems that I can foresee. It would be likely to speed up the proceedings by a fraction.
 Under amendment No. 81, if there were a problem with non-communication, the court could not be blamed, because the prosecutor or director would have had the duty to supply the information directly to the defendant. That is a minor matter, but in adversarial proceedings, such information should be supplied. In many civil proceedings, there is a duty to supply documentation to the other party directly, and not just through the court system. I cannot think of a reason why that obligation should not exist in this case.

Bob Ainsworth: Amendments Nos. 78, 79 and 80 would require the director and the prosecutor to give a copy of their statement to the defendant in all cases. As the hon. Gentleman rightly says, amendment No. 81 would require the defendant to provide any information that is ordered by the court to the prosecutor and the director.
 The statement procedure requires the defendant to respond to the statement provided by the prosecutor and the director. That will identify any matters of dispute on which evidence may be heard. That is why clause 18(1) makes it clear that the defendant can be required to respond to the director's or the prosecutor's statement only when he or she has been served with a copy of it. 
 The service of the prosecutor's statement is dealt with in the Crown court rules, and we intend that those rules should continue to supply such provisions when the Bill is enacted. We shall ensure that, under the rules, any information that the court orders the defendant to produce is provided to the prosecutor or the director, so there is no need to provide for that in clause 19. 
 The hon. Member for Beaconsfield says that often the information is not provided. I am hugely pleased that he has picked up on the general sense of what I was urging him to do. We should try to make a real difference, but I worry that by saying that, I provoke him into thinking that we could use the Bill to sort out all the Crown court's problems. I do not know his opinion, but it would be strange if we were to make separate, special provisions for information in a case in which the Crown court is supposed to make such provisions. 
 We shall apply ourselves to ensure that the entire Crown court system works. The defendant will not be able to respond if he has not received the director's statement, so if he does not receive it, the whole object of the exercise will be defeated.

Ian Lucas: I am heartened by what the Minister has said. I see sense in the substance of the amendments. It is important when dealing with cause to make as much as possible explicit in the Bill. I see no reason why the amendments could not be included. The Minister has said that that is the intention in the rules that are to be laid down subsequently, but it seems sensible to make the position clear now.

Bob Ainsworth: I shall try to avoid a fissure on the Labour Benches if possible. Unity in the Labour ranks may be in danger.
 I say to the hon. Gentleman that we do not believe that the amendment is the right approach—

Nick Hawkins: He is not your hon. Friend any more, then.

Bob Ainsworth: I was talking to the hon. Member for Beaconsfield—and to my hon. Friend.
 We do not believe that the amendment is the right approach, but we shall make provision in the Crown court rules to ensure that that happens. Given that assurance, I ask that the amendment be withdrawn.

Nick Hawkins: I do not suggest for a moment that there is a fissure. Clearly there is not, however much we put our tongue in our cheek. However, given that a Labour Member with the same sort of experience as a practising solicitor as my hon. Friend and I have says that it would be better to specify the matter in the Bill, will the Minister at least consider that relatively small point—which is, however, sufficiently important for the hon. Member for Wrexham (Ian Lucas), from his professional experience, to agree with us—and, perhaps, think about introducing a Government amendment later?

Bob Ainsworth: Yes.

Dominic Grieve: I am grateful for the Minister's comments. I accept that there are Crown court rules and that they should work, but I do not understand why that should prevent something that is glaringly obvious from being stated in a measure when plainly the interests of justice require that the defendant should be kept informed. As I said, the problem is not that the defendant will never see the documents, but a delay—and the fact that someone may subsequently say that that has not happened. The prosecutor may then say that he is under no obligation and can pass the buck to the court administration system, which is often overburdened anyway with many responsibilities.
 I invite the Minister to consider this small amendment carefully. It may be the one Grieve amendment to the Bill's 444 clauses, unless I can persuade the Minister to accept some others as we proceed. It is innocuous and spells out what should happen.

Bob Ainsworth: I accept the hon. Gentleman's point. It is in the interests of not only justice but confiscation that the information should be passed. If it is not passed and we cannot satisfy ourselves that it will be passed through the normal court system, there is some sense in considering the amendment. I give him that assurance but ask him to withdraw the amendment.

Dominic Grieve: I thank the Minister.

Nick Hawkins: My hon. Friend said that the amendment might be the only Grieve amendment. I hope that there will be many more. The former Member for Milton Keynes, North-East and I regarded as the Butler-Hawkins amendment to the Criminal Justice and Public Order Act 1994 a one-word amendment that was extremely important because it allowed police officers the opportunity to search under Rastafarians' hats for drugs. That is one of the few occasions that I can remember of a one-word amendment being accepted by the Government. The amendment ``after `coat', insert `,hat''' made a substantial difference. Even a small amendment can be significant.

Dominic Grieve: I accept that. Putting in words such as ``not'' throughout the Bill would transform it radically. However, the Minister will not allow us to do that.
 I am grateful to the Minister and will not take up any more of the Committee's time. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Norman Baker: I beg to move amendment No. 28, in page 9, line 36, leave out `serious'.
 We return to the word ``serious'', which I raised earlier. This time, the provision contains a qualifying phrase, which I hope will make the difference and allow the Minister to consider the issue afresh. 
 The amendment relates to the statement of information that must be provided if the court is proceeding under clause 6. Clause 17(4) states: 
 ``A statement under subsection (3) . . . must, if the prosecutor or Director believes there would be a serious risk of injustice if a required assumption were made, include information he believes is relevant in connection with deciding whether it should not be made.'' 
Therefore the decision goes beyond the director's decision. The decision whether to include information is not the deciding factor. Such flexibility should be left to the court. 
 If the court is left with that flexibility under clause 17, it ought to be made aware of information that the director may hold even if there is a risk of injustice. If the risk is minimal, surely the court can proceed in the way in which the director wishes. The danger with the wording is that only when there is a ``serious'' risk of injustice will the court be informed and take it into account. If, however, there is simply a risk of injustice, the court need not be informed, and that is a more serious issue. I am not asking for a change to be made that would alter the final decision about a case, but one that would allow further information to be forthcoming when a decision is taken, and that can only be a good action to take.

Nick Hawkins: I agree with the hon. Gentleman. Although the amendment is not one of those to which my hon. Friend the Member for Beaconsfield, myself and other colleagues have subscribed, it was a proposal that my hon. Friend and I were thinking about. We were glad that the hon. Gentleman tabled it because we knew that we would have an opportunity to debate it. He has put his case in a sensible and moderate way. As he said, this occasion is slightly different from the other times when we have debated the word ``serious'' and it has given the Minister the opportunity to think afresh about such matters.
 I hope that we may receive the expert opinion of my hon. Friend the Member for Henley (Mr. Johnson) who has already been identified—even by Labour Members—as the expert wordsmith on the Committee. Speaking as a mere lawyer, I know that there is a difference in the law when deciding between ``risk'' and ``serious risk''. It is a significant difference and that is why I support the amendment.

Dominic Grieve: The amendment is spot on. Let us suppose that we reworded the clause so that it read:
``must, if the prosecutor or Director believes there would be a slight risk of injustice''. 
Even a ``slight risk of injustice'' is a matter that should be brought to the notice of the court. The term ``risk of injustice'' does not need further definition. I hazard a guess that the use of the word ``serious'' is the retrotting out of an accepted formula. When scrutinised, it would become fairly clear that it does not add up to much. If there were a risk of injustice, I would not expect a fair prosecutor to withhold information relating to it. The question of the seriousness of the risk is a matter for the evaluation of the court when the information has been imparted. 
 In the circumstances, subject to his officials' guidelines about the use of ``serious'' in other legislation, I hope that the Minister will accept the amendment. It would not diminish the force of the clause. We do not want the situation that we have had with public interest immunity issues, for example, in which one discovers that some information should have been made available to the court that might have coloured its decision. Once we start going down that road, the whole system will be brought into disrepute. Given my time as a prosecutor, I am a great believer in putting the cards on the table, unless there is a compelling argument for not doing so. In my experience, there hardly ever is.

Nick Hawkins: As my hon. Friend is rightly setting out, and as any member of the Bar or anyone who has been a solicitor-advocate knows, if one is prosecuting, one has a duty towards the court to bring all relevant concerns before it. There have been several serious cases in which, in the end, the prosecution had to say to the judge that things had gone so badly wrong that they could not, in their duty of prosecuting on behalf of the Crown, allow matters to go forward. Because that is a duty of the prosecution, it should certainly be brought to the attention of the court, even if, in the context of this Bill, there is only a slight risk of injustice.

Dominic Grieve: My hon. Friend is right. Those of us who have been in practice—I am sure that this applies to Government Members who have been involved in such cases—know that it is more than occasional, or it certainly was before the rules were changed, for information withheld to be regretted subsequently by the prosecution, when it turns out to have been irrelevant, even when they thought, ``Oh well, it is there, but it is not serious or relevant enough.'' It is much better that it should be up front. In those circumstances, if the director has information that he should bring to the court, as it might cause a risk of injustice if he does not, he should do so.

Ian Davidson: I am concerned about the disclosure of names and addresses of witnesses. Would it be more likely under the amendment that the names and addresses of witnesses who had provided information confidentially would be disclosed? I would be hostile to that.

Dominic Grieve: No. One of the classic areas of public interest immunity is protecting the identity of informants. The amendment is not intended to alter that in any way, and would not do so. It would, however, make it clear that once there is information that might cause a risk of injustice if the court is not able to take it into account in making assumptions, it must be communicated to the court. Otherwise, the director will be able to make his own value judgment on the necessity of disclosure, which is a mistake.
 Furthermore, I cannot see the problem from the director's point of view. If the reasoning is that it is a public interest immunity matter, the ordinary public interest immunity rules would operate, which would protect the informer but still require the director, at a crunch point, to decide whether he wanted to continue the proceedings or disclose the information. However, it is not acceptable for directors or prosecutors to hide behind their own assessment of the seriousness of the risk of injustice. That should be decided by the court, which has to make the determination of the assumption.

Boris Johnson: I feel obliged to intervene under the knout of my hon. Friend. The adjective should be struck out because it is wholly otiose. It is easy to see why. The seriousness or otherwise of the risk bears no relation whatever to the scale of the injustice that might eventuate. A trivial risk of injustice might produce a great injustice and vice versa. That is why it is immaterial to the clause. I support the amendment and believe that the word ``serious'' should be whacked out.

Dominic Grieve: I thank my hon. Friend. I am faced with a phalangeal range of views on this issue. I hope that I noticed correctly one or two Labour Members who appeared to be nodding in agreement with some of the points that have been made. I hope that the Minister will reconsider the matter. It will in no way damage the thrust of the Bill.

Bob Ainsworth: There appears to be broad attack on this wording: it should be not only removed but whacked out. We will have to try to give it serious consideration.
 The amendment would require the director and the prosecutor to include in their statement information relating to any risk of injustice that would arise as a result of the assumptions being made. Assuming that the test of serious risk of injustice was maintained in relation to the assumptions, the amendment would mean that the court would need to decide whether the risk that had been identified by the director or the prosecutor amounted to a serious risk. I am aware that the hon. Member for Lewes is opposed also to the words ``serious risk'', so I am not dead sure about the thrust of his argument. 
 The present legislation requires that there must be a serious risk of injustice if assumptions are not to be made. That test is re-enacted in clause 11. Clause 17 is designed to ensure that the director or the prosecutor brings attention in his statement to any information that is relevant to the matter. It has been argued before in Committee that we believe that the test of a serious risk, included under clause 11(6)(b), is pitched at the right level. If the hon. Member for Lewes or other members of the Committee think that it should be lowered, we must disagree. It is pitched at the right level and provides adequate safeguards. As has been said before, we are not intent on changing our position. 
 It is right that, when furnishing information to the court in a case when assumptions are likely to be made, the director or the prosecutor should have to provide information that would show that there would be serious risk of injustice if such assumptions were made. That goes hand in hand with clause 11. However, a requirement on the director or the prosecutor to produce information relating to any possible risk of justice is not necessary. There must be some risk at that stage in the proceedings and, by that stage, I mean the statement of the director or the prosecutor.

Annette Brooke: Is the Minister suggesting that it is appropriate that the director may withhold information under certain circumstances?

Bob Ainsworth: The hon. Lady must consider what the director is doing at that stage in the proceedings. He is making a statement to the court about whether the defendant has a criminal lifestyle and whether he has benefited from general criminal conduct. He must also provide details of the benefit from that conduct, including any relevant information. He must identify whether during his investigations he found out anything that poses a serious risk of injustice.
 The purpose of that statement is to present the situation to the court so that the defendant can know what is being said and can be able to rebut it. It is not a replication of the position under the current legislation. We are bringing into legislation what has been the practice over time. We are requiring the director to include in his statement whether there is any risk—and there must be a risk in the information in the statement at that stage because the point in the proceedings at which the defendant's own evidence has been considered or even tabled has not been reached—so the court needs to know whether the director or prosecutor, when gathering financial information for the purpose of the statement, identified material that clearly showed that there would be an injustice should any assumptions be made about the case.

Stephen Hesford: I say this in a friendly way. I am worried. The matter is not as complete a vacuum as my hon. Friend might think. During the investigation, there will be many opportunities to interview a suspect under caution about the matters, and much of the content of the director's statement will come from such interviews. There will be a substantial steer during the investigation towards what the defendant may or may not say about property that has been seized. If a word must precede ``risk'', might it be ``real''?

Bill O'Brien: Order. That was a lengthy intervention.

Bob Ainsworth: Let me try to reassure my hon. Friend and the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke). The hon. Lady asked me whether the prosecutor must disclose all the information or is allowed to hide it from the court, and my hon. Friend suggested that there might be a problem. Clause 17(3) requires the director to reveal any information that is relevant to deciding the issues.
 The director or prosecutor must make the case in the statement. All the relevant information must be revealed to the court. The court must be told if the director or prosecutor believes that any information, which must be laid before the court, suggests that there is a serious risk of injustice. The defendant may then put his case against the statement. The court will decide whether there is a serious risk of injustice based on evidence from the prosecutor or director and the defendant. 
 I do not know what changing the words would mean. The director or prosecutor might have effectively to label the information for whether any risk is present, rather than making a statement of facts. The statement should be factual and complete. The director or prosecutor is not permitted to withhold relevant information, and must flag up anything that would trigger a serious risk of injustice. If we suggest that the prosecutor or director must go further than that before the defendant has put his case, we get close to returning to the argument of reversing the burden of proof back to the prosecutor, which we do not want to do. For reasons that I have stated, the current wording is adequate. The prosecutor must reveal all relevant information, and if he believes from such evidence that the serious risk of injustice provisions in the assumptions would be triggered, he must flag that up. The defendant then gets the opportunity to put his case by rebutting the statement that has been made. I do not see any huge inadequacies in that, and I ask the hon. Gentleman to withdraw the amendment.

Norman Baker: I am concerned by the Minister's response, as I am genuinely worried by the inclusion of the word ``serious''—and that opinion is shared by other Committee members. The Minister's notes come from his officials, and it is their business to defend the Bill in its present form. However, this is a serious matter, and I ask him to think about it.
 It is unfair to compare clause 11 with clause 17. They share the same form of words, which is 
``a serious risk of injustice'', 
but the circumstances are different. In clause 11, the court must decide, on the evidence brought before it: it is for the court to judge whether there is a serious risk of injustice. The court is a neutral body between the prosecuting authorities and the defendant. The purpose of the court is to assess the arguments and to take matters forward. 
 However, subsection (4) is not about the court: it is about a partisan body—the prosecuting authorities—making a judgment. Evidence that the court might wish to have, and that might be helpful to the defendant, could be withheld.

Ian Lucas: Subsection (4)(a) suggests that all the information that the director believes is relevant must be disclosed. Given that, I am puzzled about why subsection (4)(b) is necessary. All relevant information must, almost by definition, include any information that is relevant to a risk of injustice, whether or not that is serious.

Norman Baker: I do not see it that way. The prosecutor's function is to secure a successful outcome. Subsection (4)(a) refers to the assumptions, which are intended to help secure that outcome.
 The Minister cited subsection (3) in defence of the status quo—to use a Latin phrase, for the benefit of the hon. Member for Glasgow, Pollok.

Ian Davidson: What does it mean?

Norman Baker: It is a pop group.
 One might interpret subsection (3) to mean that the prosecutor must disclose everything. However, it could also be interpreted to mean that the prosecutor should disclose everything that justifies the position that he has concluded—in respect of the defendant having a criminal lifestyle, for example—and that it does not necessarily oblige him to disclose matters that may lead him to reach an alternative conclusion. I am not convinced that subsection (3), or the point made by the hon. Member for Wrexham, would require the prosecutor to put that case fairly. After all, it is not his job to do that. If it is his job to put a balanced case that sets out the pros and cons, why is subsection (4)(b) necessary—especially as subsection (4)(a) is all-encompassing? The assumption is that subsection (4)(b) is necessary because a further test is put on the prosecutor: having reviewed the matter, he must ask whether there is a risk with regard to material that is not being disclosed. Ought the court to be made aware of that in reaching its conclusions? That is how I read the matter. 
 If that is correct, we return to the matter of serious risk. With regard to subsection (4)(b), my initial point—and the hon. Members for Beaconsfield and for Surrey Heath also referred to it—was, if the word ``serious'' is allowed to stand unqualified and unamended, does that mean that the prosecutor could come up with material that, in his mind, could lead to a suggestion that a risk of injustice is possible? The test that he has to follow is that of a serious risk of injustice. Therefore, he may conclude that that information does not have to be submitted as part of the statement that he gives to the court.

Ian Lucas: Would not that information be relevant in connection with applying the assumptions under clause 11? It does not refer to the prosecutor establishing his case on the assumptions; it refers to applying the assumptions. That information must be relevant.

Norman Baker: Of course it is relevant. That is why I want it included as information to which the court has access. However, I am not clear about whether the prosecutor regards it as relevant to include material that is detrimental to his case in the material that he submits to the court. For example, there may be evidence to suggest that a person has a general criminal lifestyle, but there may also be other material that would suggest otherwise, which therefore may not necessarily be included. My point is made in the interests of justice. A partisan body—the prosecutor—is being given an opt-out that allows it not to bring to the court information that may indicate a risk of injustice, albeit not a serious one. If the risk of injustice is low, and the prosecutor nevertheless makes it plain, the court will conclude that the risk is low and no harm will be done to the prosecution's case. If, however, material is held by the prosecutor that is not passed on to the court, and it subsequently transpires that that information should have been revealed, that is a difficult situation, which involves miscarriage of justice. That is all that I am saying. I plead with the Minister to look at the matter again, because his response does not cover the situation that I have described. It poses a risk of miscarriage of justice.

Ian Davidson: I have listened with enormous interest to the hon. Gentleman, or as much enormous interest as I have been able to muster. Will he clarify the relationship of Status Quo to this matter? I am conscious that they released a record called ``Down, Down'', and some of the things that they did were criminal, but he has completely failed to convince me of their relevance.

Norman Baker: They also made a record called ``Pictures of Matchstick Men'', which is what I think about when I am subject to that kind of intervention. I am making a serious point about the clause.

Bob Ainsworth: Can I try to elicit from the hon. Gentleman where the risk lies? The prosecutor's statement dictates whether he is making the allegation that a person has a criminal lifestyle; the offences that have been committed by the defendant to brand him in that way; and the results of the financial investigation that he has undergone to identify the property that is available for confiscation as the proceeds of crime. The purpose of putting the statement before the court is to allow the defendant and the court to consider it. The defendant is given the opportunity to say, ``That is not true.'' Where does the risk of injustice, about which the hon. Gentleman is so worried, arise?

Norman Baker: The risk of injustice arises, as it would in any court proceeding, when the prosecution has evidence that it does not share with the defence. That is the point. It is all very well saying that the defendant has a right to make his case, but what if the prosecution finds evidence that is helpful to the defendant, of which the defendant is not aware? Should that not be available to the court? I think that it should. If there is a serious risk of injustice, that is different from a risk of injustice. The Minister has not covered that point, nor has he explained the pertinent intervention from the hon. Member for Wrexham, who effectively said, ``If everything is hunky-dory and dandy, there is no problem and it is an open statement, why is subsection (4)(b) necessary?'' It is necessary because the Bill's draftsmen themselves recognise that there is a problem that needs to be covered by a safeguard. I share that view, but the safeguard is at the wrong point. I hope that the Minister will respond further, because it is a serious issue.

Bob Ainsworth: If the prosecutor has evidence, he must disclose that under subsection (3). The prosecutor is required to disclose the findings of his investigations to the court. He cannot discover information and hide that from the court. However, the statement is there to make his case. If we accept that the proof of serious risk of injustice, which is judged by the courts, is required to discount the other provisions in the Bill, we want the prosecutor to flag up the fact that the trigger has been reached in the statement that he takes to the courts. The defendant receives a copy of the statement, and he must make his own case. The court must decide whether that case is made.
 The hon. Gentleman asked why the drafters included the serious risk provision in the clause. I do not know whether I made myself clear. The current legislation does not require the prosecutor to do that. However, that is the way in which the confiscation proceedings have worked. I am told that when prosecutors have discovered a serious risk during their investigations, which would trigger the protection through this legislation, they have disclosed that. We are putting such good practice in the Bill to ensure that it continues. 
 The amendment is unnecessary. It is not the normal way in which such things are, or should be, dealt with. The defendant can rebut the statement. The court will decide following the prosecutor's statement and the defendant's rebuttal.

Norman Baker: The Minister himself admits that in the light of the present operation of civil legislation, he feels that it is necessary to include a safeguard that was not previously present. Clearly, the existing legislation's operation has not been without problem, and a safeguard is required. That is because there is a conflict of interest.

Bob Ainsworth: Neither the hon. Gentleman nor any hon. Member has produced evidence in Committee to show that the current proceedings have led to any injustice. If there were such evidence, we would have taken that into consideration. We are putting good practice that has occurred into the Bill.

Norman Baker: I am interested to hear that. When phrases have been queried, the Minister has been keen to say that phrases have been lifted from previous legislation. When amendments have been tabled, he has said that things are being kept as they are. In this case, somebody has made a specific change to introduce a provision in the Bill. There must be a reason for that, which is, I believe, that the need for a safeguard has been identified. A safeguard has been introduced, but at the wrong level.
 I am not convinced by the Minister's comments, and I will press the amendment to a vote. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 13.

Question accordingly negatived.

Nick Hawkins: On a point of order, Mr. O'Brien. It should be placed on record that we Opposition Members admire the Government Whip's steely glance, because she managed to persuade the hon. Member for Wirral, West, who spoke in favour of the amendment, to vote against it.

Bill O'Brien: That is not a matter for me.

Stephen Hesford: Further to that point of order, Mr. O'Brien. The hon. Member for Surrey Heath deliberately seeks to misinterpret, as is his way. I did not speak in favour of the amendment. I proposed a different formulation of words.

Bill O'Brien: That is not a point of order, it is a matter of procedure.
 Clause 17 ordered to stand part of the Bill. 
 Clauses 18 and 19 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mrs. McGuire.] 
 Adjourned accordingly at twenty-nine minutes to Five o'clock till Tuesday 27 November at half-past Ten o'clock.